Construction Law

The moving party brought a motion for leave to bring an application for judicial review from an adjudicator's determination under the Construction Act.

The Divisional Court dismissed the motion.

Although the responding party was successful, the court declined to award costs because the responding party failed to deliver a costs outline or bill of costs prior to the hearing, contrary to the Consolidated Practice Direction for Divisional Court Proceedings.

The appellant appealed a motion decision finding its claim for lien had expired for failing to set the action down for trial within two years as required by s. 37 of the Construction Act.

The appellant argued its lien was saved because another lien claimant on the same project had set its action down in time, asserting they were part of the same 'improvement'.

The Divisional Court dismissed the appeal, holding that an 'improvement' is tied to the specific lands described in the claim for lien.

Because the appellant and the other claimant registered liens against different lands, the appellant could not enforce its lien in the other claimant's action.

Following the dismissal of its application, the applicant sought to make further submissions regarding recent amendments to the definition of 'written notice of lien' under the Construction Act.

The Divisional Court declined the request, finding that the amendments, which came into effect after the applicant's payment obligations arose, did not apply retrospectively.

The court also declined to provide general guidance on the new amendments, noting that such guidance should be reserved for cases where the issue is material to the result.

The appellants appealed a trial judgment finding they unjustifiably terminated and repudiated a residential renovation contract.

The trial judge awarded the respondent contractor $105,804.92 plus costs.

On appeal, the appellants challenged the trial judge's exclusion of their proposed expert, interpretation of the contract, factual findings on completion percentage, and credibility assessments.

The Divisional Court dismissed the appeal, finding no errors of law or palpable and overriding errors in the trial judge's factual findings.

Leave to appeal the costs award was also denied.

The appellant contractor appealed a motion judge's order discharging and vacating its construction lien.

The motion judge had found that the lien expired prior to perfection because the contract was terminated or abandoned more than 150 days before the certificate of action was registered.

On appeal, the contractor argued the motion judge erred in finding termination or abandonment and improperly used enhanced fact-finding powers.

The Divisional Court dismissed the appeal, finding no palpable and overriding error in the motion judge's factual findings of termination and abandonment, and concluding that the motion judge correctly applied the evidentiary burden without resorting to enhanced fact-finding powers.

The appellant transported contaminated soil to the respondent's transfer station.

The motion judge concluded that these stand-alone transportation services were not lienable under the Construction Lien Act.

The Court of Appeal upheld this decision, finding no error and relying on established case law.

The appellant appealed a trial judgment dismissing his claims for breach of contract regarding the renovation of 118 bathrooms and for slander.

The Court of Appeal dismissed the appeal, finding no palpable or overriding error in the trial judge's conclusions that no contract existed and that the appellant failed to prove slander.

The appellants, land developers, retained the respondent engineering firm to prepare a geotechnical report on soil conditions for a townhouse development.

The report estimated pile foundations would need to be driven to an average depth of 20 feet, but ultimately they had to be driven to 60 feet, resulting in additional construction costs.

The appellants sued for breach of contract and negligent misrepresentation.

The trial judge dismissed the action.

On appeal, the Court of Appeal upheld the trial judge's findings that the failure to drill a sixth borehole was due to inaccessibility and that there was no evidence the respondent inaccurately interpreted the borehole data.

The appeal was dismissed.

The appellants appealed a trial judgment finding Jasper liable to pay the respondent and assessing costs.

The Court of Appeal dismissed the appeal on the merits, finding no error in the liability determination.

However, the Court granted leave to appeal costs and reduced the trial costs to $45,000, noting the trial judge erred by including hours spent on unsuccessful motions.

The issue of entitlement to trust funds paid into court was remitted to the trial judge.

The respondent was awarded $7,500 in costs for the appeal.

The appellants perfected a construction lien, and the respondent moved to discharge it on the basis that the work was not lienable.

The motion was dismissed, and the respondent appealed to the Divisional Court.

While the decision was under reserve, the two-year period to set the action down for trial under s. 37 of the Construction Lien Act expired.

The respondent successfully moved to have the lien declared expired, which was upheld by the Divisional Court.

The Court of Appeal dismissed the appellants' appeal, holding that the time limits in ss. 37 and 46 are mandatory and are not suspended by a reserved judgment.

The appellants appealed an order of the Divisional Court.

The Court of Appeal for Ontario dismissed the appeal as moot, with no order as to costs.

The appellant appealed a trial judgment regarding a construction subcontract, arguing the trial judge erred in failing to find the contract unambiguously required the respondent to pay for aluminum door hardware.

The Court of Appeal dismissed the appeal, finding the contract was ambiguous and the trial judge was entitled to rely on parol evidence, including a fax from the appellant's representative, to conclude the appellant was responsible for payment.

A cross-appeal regarding re-testing was also dismissed as there was evidence to support the trial judge's conclusion.

Costs of $7,000 were awarded to the respondent.

The respondent sued the appellant and other defendants for defects in concrete used to build houses.

The respondent obtained summary judgment against the appellant for breach of contract, including hard costs for rebuilding the homes.

The appellant appealed, arguing that summary judgment would not simplify the proceedings.

The Court of Appeal dismissed the appeal, finding that the contract claim was discrete from the tort claims and raised no genuine issue for trial, and that the summary judgment significantly simplified the proceedings.

The respondent and other companies sued the appellant and other parties for defects in concrete used to build houses.

The respondent obtained summary judgment against the appellant on the contract claim for 'hard costs' of rebuilding the homes.

The appellant appealed, arguing that summary judgment would not simplify the proceedings.

The Court of Appeal dismissed the appeal, finding the contract claim was discrete from the tort claims and raised no genuine issue for trial, and that the summary judgment significantly simplified the proceedings.

The insurer appealed an order requiring it to indemnify the insured general contractors under two Commercial General Liability (CGL) policies for the cost of repairing structural defects in new homes caused by defective concrete supplied by a subcontractor.

The insurer argued that CGL policies inherently do not cover an insured's own defective work or product.

The Court of Appeal dismissed the appeal, holding that the application judge correctly focused on the specific language of the policies rather than general insurance principles.

The policies contained an explicit exception to the defective work exclusion for work performed by a subcontractor, which operated to restore coverage.

The plaintiffs sued the defendant engineers for professional negligence regarding a foundation design.

The defendants moved for summary judgment based on the expiry of the one-year limitation period under the Professional Engineers Act.

The motion judge dismissed the summary judgment motion, finding a genuine issue for trial regarding when the plaintiffs discovered the material facts, but simultaneously granted the plaintiffs' cross-motion to extend the limitation period.

The Court of Appeal allowed the defendants' appeal, holding that the order extending the limitation period was a final order and that the motion judge erred by resolving the limitation extension issue while acknowledging a genuine issue for trial existed regarding the plaintiffs' knowledge of the facts.

The appellant owners entered into a construction contract to build a house.

They overpaid the general contractor, who subsequently failed to pay the respondent subcontractors.

The subcontractors registered construction liens and claimed the owners were liable for the overpayment amount in addition to the 10 percent statutory holdback under the Construction Lien Act.

The Court of Appeal allowed the owners' appeal, holding that under section 23(2) of the Act, an owner's liability to lien claimants is strictly limited to the statutory holdback they are required to retain, regardless of any overpayments made to the contractor.

The appellant bricklayer appealed a trial judgment dismissing his claim for $18,000 and awarding the respondents $19,260 on their counterclaim for defective work.

The Court of Appeal first determined that the appeal fell within the monetary jurisdiction of the Divisional Court, as the word 'or' in s. 19(1)(a) of the Courts of Justice Act is disjunctive.

Reconstituting itself as the Divisional Court, the panel allowed the appeal in part, finding the trial judge erred by failing to set off the respondents' damages against the value of the appellant's work, resulting in a net award of $7,114 to the respondents.

The appellant appealed a motions court decision answering questions on a special case under Rule 22.

The Court of Appeal upheld the motions judge's finding that s. 13 of Reg. 892 is intra vires the governing Act, as the Act's subrogation provisions are broad enough to cover payments made out of the guarantee fund.

The Court also found that the Corporation's expenses to rectify construction deficiencies in a condominium project qualified as payments triggering a right of subrogation.

The Corporation's right to subrogation was not defeated by the fact that the payments were made before the condominium corporation came into existence.

The appeal was dismissed.

The appellant appealed a trial judgment dismissing its action for payment for installing a subsurface drainage system and awarding damages on the respondent's counterclaim for crop losses due to improper drainage.

The trial judge found the system inadequate due to soil conditions, the filter used, and installation in wet conditions.

The Court of Appeal dismissed the appeal, finding no palpable error in the trial judge's factual findings.

The Court also upheld the damages award, noting the limitation of liability clause was not incorporated into the agreement or pleaded.